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Extra-Contractual Liability Law
B. It is expected that the courts will apply the “Menendez rule” and hold any claim lawsuit arising from a policy issued before the effective date of the statute will continue to carry exposure to attorney’s fees
Notably, the elimination of the one-way fee statute only applies to property insurance claims. Hence disputes involving other forms of insurance coverage, such as CGL policies, will continue to face the exposure to attorney’s fees if the carrier is not successful in a coverage action. One seemingly unanticipated issue is whether an insured seeking coverage for a third party claim under the liability portion of a homeowner’s policy will be able to recover fees. Insurers could argue fees are not available because the suit “arises under” a property insurance policy. However, the insureds will likely argue that the liability section of the policy is separate and distinct and therefore should be treated as such.
2. Bad Faith pre-requisites for property insurance claims:
A. F.S. 624.1551 was amended to require a finding of breach of contract through an diverse adjudication by a court of law before a bad faith lawsuit can be filed; the amendment also specifically states acceptances of statutory proposal for settlement or payment of an appraisal award does not meet this requirement.
B. An issue we anticipate is a dispute over when this pre-requisite will take effect. Ideally for insurers, it would be effective immediately upon enactment of the law. However, we expect courts will likely apply the “Menendez rule” because the law arguably impacts an insured’s ability to bring suit. This would make the law applicable to claims and suits arising from policies issued after the statute was enacted in December 2022.
3. Binding Arbitration:
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FDCC ANNUAL INSIGHTS 2023