Anthony P. Strasius Partner

The Florida Supreme Court has found that insurance companies can owe attorneys’ fees to insureds under Florida law if they incorrectly deny benefits. The court found that the degree of wrongfulness or bad faith in the denial does not factor into the decision to award attorneys’ fees. 

The Florida Supreme Court recently held that defendants are precluded from introducing evidence regarding collateral source benefits that plaintiffs may receive in the future from social legislation, such as Medicare and Medicaid. The decision has significant ramifications because it removes a tool that could be used to diminish the jury award for the plaintiffs’ future damages.

A recent decision by the Florida Supreme Court confers a benefit on a state-created entity that provides property insurance that private insurers do not enjoy. Critics of the opinion say that the entity has no incentive to handle claims quickly and correctly, and that, as a practical matter, this decision actually creates a disincentive for it to do so. Proponents counter that the entity will not be burdened the by abuse of bad faith litigation that drives up rates to policyholders.

Florida’s First District Court of Appeals noted that before requiring the head of a state agency to testify, a trial court must find that the party seeking the testimony had exhausted all discovery tools in an attempt to obtain the information sought and that the testimony sought is necessary and unavailable from other witnesses. 

Florida’s Third DCA ruled that § 768.0755, Fla. Stat. (2010) must be applied retroactively to incidents that occurred before the statute became effective. However, Florida’s four other appellate districts may also address this issue in the future, and they could create a conflict by holding differently. In addition, the plaintiff has until May 24, 2013, to request that the Florida Supreme Court review the decision.

This new Florida statute provides the conditions under which a design professional may not be held individually liable for damages resulting from negligence under a professional services contract. The protection under this statute does not apply to lawsuits by third parties against the individual design professional and does not cover claims for personal injuries against the design professional. 

The Supreme Court of Florida noted that the numerous exceptions to the economic loss rule demonstrate that the expansion of the rule beyond its origins has proved to be “unwise and unworkable in practice.” The court’s recent ruling in Tiara Condominium v. Marsh & McLennan is meant to return the economic loss rule to its intended purpose – to limit actions in the products liability context.

The Florida Supreme Court has held that attorneys no longer have absolute immunity for statements made to witnesses while investigating a case, and now enjoy only a “qualified” privilege. 

While Florida’s Second District Court of Appeal ruled that it would not be fair to businesses to require them to preserve video evidence without a written request, the court noted that the Fourth District Court of Appeal has held there can be circumstances in which a defendant has a duty to preserve evidence absent a request to preserve it. There is now a conflict among the appellate districts, which may ultimately be resolved by the Florida Supreme Court.

Effective September 1, 2012, Florida will take another major step toward paperless litigation. While not substantive law, the procedural events that are occurring in Florida in this area are leading to an e-practice that will result in greater efficiency and expediency in the practice of law in Florida.

Beginning in 2012, amendments to Rule 1.720 of Florida’s Rules of Civil Procedure will make the process of scheduling mediation more complicated because they require a pre-mediation certification that the insurance representative attending mediation has full settlement authority up to the policy limits or the last demand without further consultation.

Florida’s First District Court of Appeals distinguished cases involving payments made by Medicare from those involving payments made by a private health insurer to whom the plaintiff actually paid premiums and “earned” the benefits.