With the enactment of Florida Statute 627.70152, policyholders who suffer any type of commercial or residential insurance loss, be it from a hurricane, fire, tornado, water, broken pipe, theft, roof leak, vandalism, etc., are required to notify their insurance carrier, be it Citizens Property Insurance Corporation, Allstate, Tower Hill, Heritage, People’s Trust, Universal, Homeowner’s Choice, Chubb, Hartford, Lloyd’s of London, etc., in writing of their intention to sue once their insurer has rendered a coverage determination on a property insurance claim. This writing is done formally through the Florida Department of Insurance. As a general rule, insurance companies see the new law as applying to claims when the policy was issued after July 1, 2021 (although some carriers and their counsel argue that this new statute should be applied retroactively).
If your claim arises under Florida Statute 627.70152, policyholders or their counsel must comply with the pre-suit notice provision of Florida Statute 627.70152, which mandates that they (a) cite the statute upon which the demand is made; (b) state the alleged acts or omissions of the carrier giving rise to the dispute; (c) if the underlying claim was denied, provide an estimate of damages for the claim if known; and (d) if coverage was accepted for the underlying claim, provide a numerical settlement demand as well as state the amount of incurred attorneys’ fees/costs. If this Notice is being prepared by counsel, a copy of the notice must be provided to the insured via email. Notably, if the insured’s lawsuit is dismissed because the pre-suit notice was not properly served, the policyholder’s attorney cannot be reimbursed for legal expenses and costs.
Once the Notice is received, if coverage had been initially rejected, the insurer must either accept coverage, maintain its denial, or request a re-inspection in writing. If it elects a re-inspection, it must be completed within 14 business days following the request. If the loss was initially accepted for coverage, but underpaid, the insurance company will have the opportunity to settle the case before the lawsuit can be filed. The basis of this new law essentially provides the insurer with yet another opportunity to potentially settle a poorly adjusted claim because a second adjuster, in-house lawyer, or senior decision-maker will perform a desk review or re-inspect the loss. If after the pre-suit process the insurance company fails to meet your demands, you can proceed forward with a lawsuit.
Recovery of Attorneys’ Fees and Costs For claims After July 1, 2021
Florida Statutes §§ 626.9373 (applying to surplus lines insurers) and 627.428 (applying to admitted insurers) indicate that, for lawsuits arising from residential or commercial property insurance policies (not brought by an assignee of insurance benefits), the amount of fees and costs can only be awarded only as provided in Florida Statutes §§ 57.105 or 627.70152.
Under Florida Statute § 627.70152, there is a three-part framework to determine any entitlement to attorney’s fees and costs in a lawsuit arising from a residential or commercial property policy. The framework analysis uses the “amount obtained” by the claimant, which is defined in the statute as “the damages recovered, if any, but . . . does not include any amount awarded for attorney fees, costs, or interest.”
Under the first framework, each party pays its own fees and costs if the difference between the amount obtained by the claimant and the pre–suit settlement offer (excluding attorney fees and costs) is less than twenty percent (20%) of the disputed amount.
Under the second framework, if the difference between the amount obtained by the claimant and the pre–suit settlement offer (excluding attorney’s fees and costs) is greater than twenty percent (20%) but less than fifty percent (50%) of the disputed amount, the insurer pays the claimant’s fees and costs equal to the percentage of the disputed amount obtained times the total attorney’s fees and costs.
Under the third framework, the insurer pays the full amount of the claimant’s attorney’s fees and costs if the difference between the amount obtained by the claimant and the pre–suit settlement offer (excluding attorney fees and costs) is greater than fifty percent (50%) of the disputed amount.
This new law is a significant departure from the language of Florida Statutes §§ 626.9373 and 627.428 which allowed a homeowner or commercial policyholder to simply prevail against their insurer in order to be entitled to attorneys’ fees and costs. In that respect, Florida Statutes §§ 627.428 indicates:
“Upon the rendition of a judgment or decree by any of the courts of this state against an insurer and in favor of any named or omnibus insured or the named beneficiary under a policy or contract executed by the insurer, the trial court or, in the event of an appeal in which the insured or beneficiary prevails, the appellate court shall adjudge or decree against the insurer and in favor of the insured or beneficiary a reasonable sum as fees or compensation for the insured’s or beneficiary’s attorney prosecuting the suit in which the recovery is had.”
Florida Statutes §§ 627.428
Hiring a Miami First Party Insurance Claims Lawyer to Protect Your Rights
Insurance companies are in the business of making money by collecting premiums and paying as little as possible for claims. This new law may embolden insurers to further injure their policyholders by forcing them to figure out the technicalities of Florida Statute 627.70152 and delay their lawsuit. Nevertheless, it is imperative that if you are forced to sue your insurer and the Notice of Intent is not properly filled out or complied with, there can be significant consequences. As such, it is best to consult with an attorney to complete same correctly or receive counsel as to the amounts to include in the Notice as if you go it alone and you file a lawsuit, you may be unable to recover your attorneys’ fees and costs.
Please know that the First Party Insurance Claims Lawyers at The Farber Law Firm can assist you in all aspects of your claim and help you to secure the necessary compensation you require. We have considerable experience in forcing insurance carriers like Citizens Property Insurance Corporation, Allstate, Tower Hill, Heritage, People’s Trust, Universal, Homeowner’s Choice, Chubb, Hartford, Lloyd’s of London, and many others to properly compensate our clients. We offer a free case evaluation and consultation. Call us today at 305-774-0134 or 833-INS-LOSS.