Another prominent Florida insurance company tried to prevent our client from going to court based on a technicality in a poorly written statute.
JT Law Firm fights for the rights of all homeowners and has recently obtained a huge victory for all Florida homeowners to be able to seek justice when the insurance company weaponizes Florida Statute 627.70152.
If you are wronged by your insurance company, then you should be able to fight for justice in a courtroom instead of getting blocked by technicalities that the insurance companies abuse.
What is Florida Statute 627.70152?
First, lets get a basic understanding of what statute 627.70152 is all about. This statute is the controlling law when it comes to any lawsuits arising under a property insurance policy in the state of Florida (except for assignments). This statute sets out the terms and steps that need to be taken by both the insured and the insurer before a lawsuit can be filed. The new enactments now require an insured or policyholder to notify their insurance company of their intentions to bring a lawsuit. The statute specifies the requirements that must be met when notice is given and sets a limit on the amount of time the insurance company has to respond. The statute also provides the specific ways an insurance company is allowed to respond under the law.
Specifically, under Florida Statute 627.70152, an insured is required to give the insurance company a Notice of Intent to Litigate (the “Notice”) ten (10) days prior to filing a lawsuit. Prior to filing a Notice, an insurance company is obligated to make a coverage decision, or fail to make a coverage decision with no factors beyond its control that prevented a coverage decision from being made. [1][2]
[1] Under Florida Statute 627.70131, an insurance company had 90 days to make a coverage decision on a claim. If they fail to arrive at a decision in this timeframe, they need to prove this was due to factors beyond their control.
[2] As of 2023, Florida Statute 627.70131 has been amended to require that an insurance company make a coverage decision on a claim within 60 days.
Quick summary….. What happened?
The insurance company attempted to use statute 627.70152 against the insured by failing to provide evidence and delaying the claim while the damaged property kept rotting away. The insurance company wanted to use the statute to prevent the homeowner from proceeding with their claim even though there was undisputed damage caused by Hurricane Ian to the homeowner’s property.
Specifically, on July 1, 2021, the legislature amended Florida Statute 627.70152 by requiring an insured to submit a Notice of Intent to Litigate (the “Notice”). As explained above, this Notice provides the insurance company with the insured’s intention of bringing a lawsuit. Once the Notice is properly filed, the insurance company is allowed ten (10) business days to respond.
The caveat is that the statute also provides that an insured cannot submit its Notice “before the insurer has made a determination of coverage under s. 627.70131.” Even more vague, 627.70131 required (prior to the recent amendment on December 16, 2022) your carrier to make a coverage decision within ninety (90) days “unless the failure to pay is caused by factors beyond the control of the insurer which reasonably prevent such payment.”
For example, our client reported his Hurricane Ian claim to his insurance company on October 3, 2022. Based on the statute, the insurance company had until January 1, 2023, to either pay or deny the claim. Instead of complying with the reasonable amount of time allowed under the statute, the insurance company sent a letter to JT Law Firm P.A. simply stating it was “waiting on an engineer report” for an inspection of the property that had taken place on December 7, 2022. On January 1, 2023, the insurance company failed to provide a decision on the claim. JT Law Firm P.A. gave the insurance company an additional two weeks to make a decision, but none was provided.
As a result, on January 17, 2023, JT Law Firm P.A. filed and served its Notice as required under the statute. In response to the Notice, the insurance company was allowed to provide one the following: 1) an acceptance of the coverage, 2) a denial of the coverage, or 3) request the right to re-inspect the damaged property. Here, the client’s insurance company failed to respond in a way that was allowed under the statute. Instead, the insurance company sent JT Law Firm P.A. a response alleging that that the Notice was premature because the insurance company “had not made a coverage decision”. In its response, the insurance company completely ignored its obligations to pay or deny the claim within 90 days while also failing to acknowledge that it was in possession of the engineering report as of January 5, 2023, that was crucial to the claim.
On January 24, 2023, JT Law Firm P.A. filed a Complaint against the insurance company. The case was litigated for over a year until the insurance company moved for summary judgment based on 1) the insured’s Notice being issued prior to a coverage decision being made, and 2) the filing of the lawsuit before 10 business days were allowed to expire as prescribed under statute 627.70152.
Attorney Joshua Brownlee of JT Law Firm P.A. made the pioneering argument that the carrier had no justifiable cause that prevented payment and the notice provisions enumerated within 627.70152 cannot be weaponized to prevent an insured from seeking resolution of its dispute through a jury of his peers. In other words, Mr. Brownlee made the argument that an insurance company has no right to utilize the statutes in a way that not only delays a valid claim, but prevents an insured from seeking access to the courts in order to resolve an insurance dispute in a timely manner. The Court agreed.
On August 1, 2023, the carrier moved for summary judgment on a presuit notice of intent to litigate issue which at best would dismiss plaintiff’s suit without prejudice and require the insured to start all over again.
The court addressed these issues at length by analyzing whether the Plaintiff prematurely filed the lawsuit because the notice was issued prior to a coverage decision being made and whether an insured is mandated to wait 10 business days after a notice was issued and a response received thereby satisfying the requirements of 627.70152.
The court held that under Statute 627.70131, the Defendant is required to make a coverage decision within 90 days unless factors beyond their control prevent them from doing so.
It is undisputed that the insurance company failed to arrive at a decision to pay or deny the claim within the 90-day window. The reason the insurance company failed to arrive at a coverage decision was due to the pending engineer report, which the Court noted was in the insurance company’s possession at least two (2) weeks prior to the filing of the Notice.
The Court acknowledged that the insurance company failed to arrive at a coverage decision without justification, stating in its Order, “Plaintiff correctly cites the applicable precedent which holds insurers to a strict compliance with statutory deadlines to pay insurance claims and not use its investigative rights to extend the deadline.”
The Court further Ordered, “”Lastly, Florida precedent has established an insurer who refuses to perform under the Policy or statutory deadlines acts as a denial of coverage and breach of contract permitting an insured free to file suit or in this case, issue a notice of intent to litigate…. Accordingly, in construing § 627.70152 liberally in favor of providing access to the court, the Defendant cannot use the statute as a preemptive sword by failing to make a coverage decision without cause and thereby prevent the Plaintiff from issuing its notice of intent or access to the court. Moreover, in construing the statute liberally in favor of providing access to the court, the court sees no reason after both parties have performed under the statute (i.e. a notice and response) for a Plaintiff to have to wait to file suit while nothing further under the pre-suit obligations can be accomplished. A literal interpretation of the language of a statute need not be given when to do so would lead to an unreasonable or ridiculous conclusion.”
“It’s quite common now, carriers have weaponized 627.70152 in an effort to delay and prevent an insured from seeking recourse of access to the courts…..The statute is silent on what happens if a carrier refuses to make a coverage decision despite having all the information it needs. At least one judge had the common sense to refuse to allow such tactics,” said Attorney Joshua Brownlee.
This court decision affirmed that if an insurance company does not make a coverage decision within the statutory period, and there are no factors beyond its control, then the claim is deemed denied as a matter of law. Once the claim is denied, even if not an official denial by the carrier, an insured is permitted to issue its Notice.
What’s more, this decision set a precedent that an insured may file suit within the ten business days allowed by the statute if the insurance company stands by their denial. Thus, it prevents the insurance company from restricting the insured’s constitutional right to access the courts.
As stated above, the insurance company failed to respond to JT Law Firm P.A.’s Notice in a way that was allowed under the statute. Instead, the insurance company sent JT Law Firm P.A. a response alleging that that the Notice was premature because the insurance company “had not made a coverage decision”. JT Law Firm P.A. received this response on January 18, 2023, just one (1) day after filing it’s Notice. The insurance company also asserted it was standing by their position.
Instead of waiting for the clients property to remain damaged, JT Law Firm P.A. filed suit before the expiration of the statutory ten business days. JT Law Firm P.A.’s position was simple: an insurance company does not have the right to interpret the statute in a way that would require an insured’s claim to be unduly delayed because nothing further can be accomplished under the statute itself.
Mr. Brownlee’s relentless pursuit created a foundation for every Florida homeowner to rightfully benefit under the law and not allow for an insurance company to weaponize or delay a claim unnecessarily.
