DECEMBER 2016

Here’s your update on Florida insurance-related legal developments from the Colodny Fass Insurance Litigation Practice,

Florida Insurance Matters is a monthly update on Florida insurance-related legal developments by the Colodny Fass Insurance Litigation Practice, recently recognized as the Insurance Litigation Department of the Year in South Florida by the Daily Business Review.

About the Author

Amy L. Koltnow, a Colodny Fass Shareholder, focuses her practice on representing insurance companies in complex insurance litigation and counseling insurers on claims resolution. She has represented insurers in connection with property damage and first-party coverage litigation, claims of “bad faith,” high-risk exposures, class actions and multi-district litigation.

For more information about Ms. Koltnow, click here.

Resolution of First-Party Claim by Settlement, without a Release, Equates to a Determination of Liability and Damages for Purposes of Subsequent Bad Faith Lawsuit

The case involved a denied sinkhole loss with an uncertain date of loss. The insureds initially sued two carriers for breach of contract, each who had issued policies during the time when the loss was believed to have occurred. One carrier settled and the insured continued the suit against the other carrier after filing a CRN. The remaining carrier served a proposal for settlement, which did not require the insureds to execute a release or waive their right to pursue a bad faith claim. The proposal was accepted, and the insured thereafter filed a bad faith action. The trial court held as a matter of law there was no bad faith since the case was resolved through a proposal for settlement and there had been no determination of liability and the extent of damages. The 5th DCA reversed citing several Florida Supreme Court cases holding that a carrier’s payment pursuant to a settlement, without a release, was a favorable resolution for the insureds and satisfied the prerequisites for a bad faith action.

Barton v. Capital Preferred Ins. Co. (5th DCA Dec. 5, 2016)

• Pay careful attention when settling a claim if a CRN has been filed and reference the CRN filing in the release.
• Though not required when serving a proposal for settlement, it is a good idea to include a proposed release as a non-monetary condition of settlement.

Florida Supreme Court Holds Coverage Afforded When Multiple Perils Converge to Cause Damage

In resolving a conflict between the Second and Third District Courts of Appeal, the Florida Supreme Court upheld the application of the concurrent causation doctrine to find coverage under an “all risk” policy when multiple perils converge to cause a loss, even though one of the perils is excluded under the policy.

Sebo v. American Home Assurance Co. (Fla. Dec. 1, 2016)

• This case did not involve a standard-form homeowner’s policy and the Court noted that the policy did not “explicitly avoid” applying the concurrent cause doctrine.
• Most standard form HO policies contain an anti-concurrent cause clause which precludes coverage when a loss is attributed to multiple perils and one or more is excluded.

Ashley N. Flynn Joins Colodny Fass Litigation Team

Ashley N. Flynn joined the top-ranked Colodny Fass Litigation Team as an Associate Attorney this month.
Ms. Flynn joins the firm’s property and casualty division, where she will defend first party coverage disputes, and assist in pre-suit investigations, coverage opinions, and prosecute declaratory judgment actions relating to coverage issues.

Ms. Flynn graduated cum laude from Nova Southeastern University’s Shepard Broad College of Law, where she served as Chief Justice of the Moot Court Society and on the Nova Law Review.

For over 40 years, Colodny Fass has represented insurers in complex and high-risk litigation including class actions, bad faith, insurance fraud, multi-jurisdictional cases, coverage matters, and fact-intensive, multi-party lawsuits. The Daily Business Review has recognized Colodny Fass as having the Insurance Litigation Department of the Year in South Florida.

About Amy L. Koltnow

Amy L. Koltnow, a Colodny Fass Shareholder, focuses her practice on insurance disputes from trial through appeals. She has represented insurance companies in federal and state courts, as well as in mediation and administrative forums. Ms. Koltnow oversees complex litigation matters and has successfully defended numerous class actions and insurance bad faith cases. She is a member of the Claims and Litigation Management Alliance, a national, invitation-only organization committed to furthering high standards of litigation and claims management in pursuit of client defense.

To view Ms. Koltnow’s complete professional biography, click here.

Contact Amy at akoltnow@colodnyfass.com or (954) 492-4010.