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Florida Fourth DCA rules that improperly mailed civil remedy notice to insurer did not bar subsequent bad faith claim because insurer's response effectively waived objection

On October 18, 2017, in Evergreen Lakes HOA, Inc. v. Lloyd’s Underwriters at London, No. 4D16-2657, the Florida Fourth DCA reversed a trial court’s entry of summary judgment in favor of a property insurer in a bad faith lawsuit brought by an insured. The insured had filed the civil remedies notice (CRN) required by Section 624.155(3), Florida Statutes, with the Florida Department of Financial Resources (“DFS”) and mailed a copy to the defendant insurer. The insurer responded within the 60-day period stipulated in the CRN, challenging the sufficiency of the CRN but not raising any issues regarding the service of the CRN. However, when the insured subsequently sued the insurer for bad faith, the insurer moved for summary judgment claiming that the CRN had been mailed to the wrong address and that the insured therefore could not prove that the CRN had been received by the defendant on or before the stipulated acceptance date. The trial court granted summary judgment to the insurer on that basis.

Since 2009, CRNs must be electronically submitted through DFS’ website. At the time that the CRN was filed in 2006, there was no statutory guidance as to the exact method of delivery of the CRN to the insurer. The Florida Fourth DCA noted that there was no dispute that DFS and the insurer both received a copy of the CRN more than 60 days prior the initiation of the bad faith lawsuit. Nevertheless, the insurer argued that the mailing error had deprived the insurer of the benefit of the full 60-day cure period as governed by the DFS acceptance date. The Fourth DCA concluded that even if such an argument was otherwise viable, the insurer had waived any such objection when it responded to the insured within the 60-day period.