The Florida legislature recently created a mandatory pre-suit process for first party property cases. The purpose was twofold: first, to ease the burden of numerous lawsuits on the court system; and second, provide a mechanism for carrier and insured to engage in negotiations and/or an alternative dispute resolution process prior to a potentially lengthy and costly lawsuit.

But how has it been working?

Our team is located in Fort Myers, FL, the epicenter of the impact of Hurricane Ian. The damage caused by the storm was obvious and widespread to everyone for weeks and months after the storm. As attorneys, however, we recognized it as a perfect challenge for this new law fashioned by our State. Many of us had experienced the way that Hurricane Irma lawsuits had quickly piled up
just five years prior, and we were eager to see how things changed because of the new statute.

The results have been somewhat positive, but certainly mixed. The lead time provided by the statute has certainly slowed things down, which has been a positive for attorneys and adjusters
alike. But there’s more to this than just extra time allotted.

We’ve found the new law to be most effective in cases where we select mediation or appraisal. Our team has preferred mediation since many claims come with a filed civil remedy notice. When we’ve selected the mediation option, we’ve been able to settle approximately 20-30% of cases outright. Mediations have tended to fall apart, however, when the insured suddenly brings forth claims for new damages for the first time at mediation. This is a byproduct of the fact there is no formal discovery process leading up to these proceedings. We would encourage both adjuster and attorney to engage in as much investigation prior to mediation as possible to avoid these situations. This includes re-inspections, which can be very valuable in price and scope disputes.

Another option for a carrier’s response to a notice under the statute is to simply make a monetary offer. We have seen little success here, and would generally suggest that choosing mediation or appraisal is a better option. Making an offer allows the insured to immediately file suit, whereas mediation gives the parties 90 days with which to negotiate informally leading up to the actual mediation.

Lastly, a word on challenges to the validity of these notices filed on behalf of insured. We include an objection to the validity of a notice in nearly all of our responses. In cases where suit is filed, a carefully considered motion to dismiss for invalid notice is a critical step to preserving the issue. Keep in mind that without a valid notice, an insured lacks standing to sue under the statute. We are currently litigating several different examples of this, but considering the newness of the statute, there are still lots of opportunities to make and shape new case law on the subject.