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Vigilance and Precision Essential When Responding to Conditional Demands

May 13, 2013

On May 8, 2013, Florida’s Second District Court of Appeal issued a decision [Gira v. Wolfe, Case No. 2D11-6465] which reversed a trial court’s order granting a summary judgment in favor of defendant, that enforced a prior settlement under which the carrier had timely tendered its policy limits, in response to plaintiff's conditional presuit demand. The appellate court ruled that the insurer had failed to comply with one of the terms of the demand (i.e., the offer to settle) which requested the insurer to provide "all the statements, documentation, and all of the information required to be disclosed pursuant to Section 627.4137, Florida Statutes, in the manner and form as required by statute." Although the claims representative disclosed the information regarding its policy of insurance, the statute also requires the insured or the insurance agent to disclose each known insurer to the claimant. The claims representative’s letter tendering the check did not make any representation regarding the existence or non-existence of other insurance and contained no information from the insured or insurance agent. Therefore, the appellate court held that the insurance company’s acceptance letter with the policy limits check being tendered was not full compliance with the terms of the claimant’s attorney’s offer, and therefore no settlement was reached. The case will now be returned to the trial court where an excess judgment will likely be the result.

Lesson: The insurer must meet every term presented in the claimant’s settlement offer letter, and when providing insurance disclosure under Section 627.4137 in response to a claimant’s letter, simply providing information as to your policy of insurance is not sufficient strict compliance with the statute and may keep your attempted settlement from being enforceable.

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