Bad Faith Cure Period Begins to Run When CRN is Electronically Filed

The Second District Court of Appeals in Harper v. Geico Gen. Ins. Co., 2019 Fed. App. LEXIS 3211 (Fla. 2d Cir. Mar. 1, 2019) has essentially shorted the time an insurer can avoid a bad faith action. The Court held that the plain language of Florida’s bad faith statute, Section 624.155(3)(d) “states that no action shall lie if the damages are paid or corrective action is taken within sixty days after the insured files the CRN.” Here, “files” was interpreted by the Court to include the moment when a CRN is electronically filed and not printed, mailed and ultimately received by the insurer. In other words, once the CRN is filed by the insured, the sixty-day cure period begins to run. It is important to note that when the statute was originally enacted, the insured seeking to file a CRN would complete a paper form and mailed copies to both the Department of Financial Services and the insurance company.

The insurance company in Harper argued that it made payment to the insured person within the cure period, based on the date it actually received a physical copy of the CRN by mail. However, under the Court’s interpretation of the word “filed”, the insurance company made the payment sixty five days after the CRN was electronically filed, exposing itself to a bad faith action by the insured.

This case is a wake-up call to all insurers to be very mindful of the date the CRN is filed and to diary the 60-day cure period to take place from that date, not any other date. If you are interested in receiving a copy of this decision, please contact us at blog@miamimaritimelaw.co.

Fla Supreme Court Rejects Daubert Evidence Standard

The Florida Supreme Court rejected a 2013 law intended to bring the state’s expert witness standard in line with most others states—this is otherwise known as the Daubert standard. The change in standard was backed by the Republican-controlled Legislature and business groups but opposed by plaintiffs’ attorneys. Supporters of the Daubert standard maintain switching to it would keep “junk science” out of court cases, while opponents argue a change in standard would make cases more expensive and time-consuming.

Writing for the majority, Justice Peggy Quince noted Florida’s adherence to the Frye standard set by the 1923 U.S. Supreme Court decision and the Legislature’s attempt to impose the Daubert standard followed in federal courts and 41 states. Quince noted that “Frye relies on the scientific community to determine reliability whereas Daubert relies on the scientific savvy of trial judges to determine the significance of the methodology used.” Justices Barbara Pariente, R. Fred Lewis and Jorge Labarga concurred.

Justice Quince further noted that the Florida Legislature has authority over substantive law while the Court is responsible for procedural standards, and the question of standards was one for the Court alone to decide under the separation of powers, Quince said in the 39-page opinion. This  4-3 decision overturned a ruling by the Fourth District Court of Appeal and ordered reinstatement of an $8 million verdict for Richard DeLisle, who blamed his mesothelioma on exposure to asbestos in cigarette filters and in workplaces.

If you are interested in obtaining a copy of this decision or wish to contact us to discuss this case further, you may contact us at blog@miamimaritimelaw.co.

Justice Peggy Quince, author of the opinion

Picture provided by florida-issues.blogspot.com

Rogue Insurance Adjusters in MIA Scammed Their Employer

If you have ever handled an auto insurance claim, made an insurance claim or worked for an auto insurance claims department, a call-in of a new claim is routine--in this instance, a Lexus GS350 was reportedly involved in a fender bender with a Chrysler 320 in North Miami-Dade. Within days, adjusters from a team that covers the area, reported inspecting the Lexus and authorizing a series of payments totaling over $16,000.

But according to the Miami Herald, the accident never actually happened. In fact, the exact same Lexus had been used to file at least 10 claims for phantom crashes, all signed off on by the same adjusters. The body shop that reaped most of the payouts for these claims is not real — according to Miami-Dade prosecutors, one of the companies that lists its address is, in actuality, a vacant lot in Little Haiti.

The fake crash report in September 2016 was but one of dozens of sham claims that cost GEICO more than half a million dollars and led to a series of arrests. Among those arrested: two GEICO insurance adjusters, Juan Carlos Diaz and Cesar Santiago Tapanes, who prosecutors allege got cash kickbacks for helping defraud their own company; Sepp Lewis Tevini, a mechanic who arranged the bogus claims on cars he was supposed to be servicing; and Estevenson "Skull" Dorval, who represented two auto body shops that did not exist.

It is reported that 14 people were charged in the investigation conducted by Florida's Bureau of Insurance Fraud and the State Attorney's Office. The others charged are believed to have allowed their policies to be used, or made phone calls to GEICO while impersonating crash victims. The group faces charges including grand theft, insurance fraud and racketeering. In all, at least 45 bogus claims were made, most of them on high-end cars. Some luxury car owners had no idea that their policies were being abused, primarily by their local repairers that had access to their insurance information.

This case is a warning to policyholders--check your invoices from your insurers. If your policy has increased in cost but you have not had any accidents or claims, ask why. You may be surprised by the answer.

If you wish to reach me, you may do so at blog@miamimaritimelaw.co.

Pretrial Stipulation is Trial Blueprint in Florida State Court

September 14, 2015

In Palm Beach Polo Holdings v. Broward Marine, 40 Fla. Law Weekly D1932 (Fla. 4th DCA Aug. 19, 2015), the issue of whether the underlying claim was barred by the statute of limitations was memorialized in the pretrial stipulation entered between the parties. By definition and policy, this should have been considered a matter officially at issue in dispute during the trial. However, the trial court concluded that because the relevant statute was not framed in the preliminary instructions to the jury and because the appellants did not argue it in their opening statement, the defense was not properly raised and was waived.

The Florida's Fourth District Court of Appeals disagreed. It took the opportunity to remind judges and litigators that the document upon which all parties can always rely on is the Pretrial Stipulation. The appellate court observed that any previous disputes or contentious pretrial issues become mostly irrelevant once the parties prepare and stipulate to the final agreed upon "executive summary” as to what the impending trial will be about and the specific issues that remain on the table. As noted by the court, the Pretrial Stipulation is one of the most “coveted and effective pretrial devices” enjoyed by the trial court and all the parties. The court further noted how the Pretrial Stipulation is a “powerful blueprint” that fully enables a well-run and fair trial. It also stated that the Pretrial Stipulation prescribing issues on which the case is to be tried are binding upon the parties and the court and should be strictly enforced.

Everyone connected with the trial, from the witnesses to well-prepared and efficient lawyers, benefit from a mandated and duly enforced Pretrial Stipulation. The appellate court then rejected the argument that because the statute of limitations issue was not in the preliminary instructions to the jury or referenced in the opening statement, that it was of no consequence.

While a seemingly simple decision, Palm Beach  Polo Holdings is an important one. In this day and age of "gotcha" litigation, parties are increasingly looking for ways to suggest that the other side waived arguments before the court. The Pretrial Stipulation is the document that sets the stage on the issues to be litigated before the trial court.

If you are interested in receiving a copy of this decision or otherwise reaching me, you may do so by writing to me at via this blog or at lawofficesofmov@gmail.com.