Legal Document: LEWIS, JIMMY vs. OAK FORREST CONDOMINIUM ASSOCIATION, INC.

On August 02, 2022 a was filed involving a dispute between Lewis, Jimmy, and Oak Forrest Condominium Association, Inc., for Premises Liability - Commercial in the District Court of Charlotte County.

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Filing # 178453175 E-Filed 07/28/2023 11:47:37 AM

IN THE CIRCUIT COURT OF THE
TWENTIETH JUDICIAL CIRCUIT IN AND
FOR CHARLOTTE COUNTY, FLORIDA
CIVIL ACTION
JIMMY LEWIS,
CASE NO.: 22001067CA
Plaintiff,

OAK FORREST CONDOMINIUM
ASSOCIATION, INC.,

Defendant.
_______________________________/

DEFENDANT, OAK FORREST CONDOMINIUM ASSOCIATION, INC.’S, MOTION TO
AMEND ITS AFFIRMATIVE DEFENSES
Defendant, OAK FORREST CONDOMINIUM ASSOCIATION, INC., hereinafter,

“Defendant”), by and through its undersigned counsel, files its Motion to Amend its

Affirmative Defenses, and in support thereof states as follows:

INTRODUCTION

This case arises out of an alleged trip and fall that occurred on May 4, 2021,

with Plaintiff seeking damages for injuries claimed to have arisen from the alleged fall

On August 23, 2022, Defendant filed its Answers and Affirmative Defenses.

On March 24, 2023, Governor DeSantis signed House Bill 837.

The reforms set forth in House Bill 837 took effect upon becoming law (i.e.,

March 24, 2023). See Exhibit “A.”

The changes provided under the aforementioned reforms include a shift to

a modified comparative fault system and the creation of evidentiary guidelines for

establishing medical expenses in personal injury or wrongful death actions.

COLE, SCOTT & KISSANE, P.A.
5220 SUMMERLIN COMMONS BLVD. SUITE 201A FORT MYERS, FL 33907 - (239) 690 7900 (239) 690 7968 FAX
Case No. 22001067CA

Under binding Florida case law, the shift to a modified comparative fault

system and the creation of evidentiary guidelines for establishing medical expenses

constitute procedural changes. Hence, they apply retroactively, and Defendant is entitled

to set forth the following affirmative defenses:

At all times material hereto, Plaintiff conducted himself so carelessly and

negligently so as to have been the sole or contributing cause of the alleged incident

herein sued upon. Plaintiff is barred from recovery under § 768.81(6), Fla. Stat.,

because Defendant was not comparatively negligent, and/or because Plaintiff was

more than 50% comparatively negligent. Alternatively, Plaintiff’s damages must be

reduced in proportion to their fault under § 768.81(2), Fla. Stat.

Plaintiff’s damages, if any, must be reduced in accordance with § 768.0427,

Fla. Stat. Pursuant to § 768.0427(4) Fla. Stat., Plaintiff may not recover damages for

any amount which exceeds the evidence of medical treatment and services admitted

pursuant to § 768.0427(2), Fla. Stat., Plaintiff may not recover damages for any

amount which exceeds the evidence of medical treatment and services admitted

pursuant to § 768.0427(2), Fla. Stat., nor may Plaintiff recover damages exceeding

the sum of the following: (a) amounts actually paid or on behalf of Plaintiff to a health

care provider who rendered medical treatment or services; (b) amounts necessary to

satisfy charges for medical treatment or services that are due and owing but at the

time of trial are not yet satisfied; and (c) amounts necessary to provide for any

reasonable and necessary medical treatment or services that Plaintiff will receive in

the future.

Failure to afford Defendant leave to amend its affirmative defenses

constitutes error and an abuse of discretion. Leave of the court to amend pleadings shall

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COLE, SCOTT & KISSANE, P.A.
5220 SUMMERLIN COMMONS BLVD. SUITE 201A FORT MYERS, FL 33907 - (239) 690 7900 (239) 690 7968 FAX
Case No. 22001067CA

be freely given where justice so requires. A court is justified in refusing to permit

amendment only if the amendment would prejudice the opposing party, the privilege to

amend has been abused, or the amendment would be futile. None of these scenarios are

applicable in the instant proceeding.

Defendant attaches its proposed amended answer and affirmative defenses

hereto. See Exhibit “

MEMORANDUM OF LAW

As noted by the court in Laurencio v. Deutsche Bank Nat’l Trust Co., it is generally

reversible error to deny a party leave to amend their pleadings:

Leave of court to amend a pleading shall be given freely
when justice so requires. Fla. R. Civ. P.1.190(a). Public
policy favors th liberal amendment of pleadings, and courts
should resolve all doubts in favor of allowing the
amendment of pleadings to allow cases to be decided on
their merit. S. Developers & Earthmoving, Inc. v. Caterpillar
Fin. Servs. Corp., 56 So. 3d 56, 62 (Fla. 2d DCA 2011). A trial
court’s refusal to permit an amendment of a pleading is an
abuse of discretion unless it is clear that: (1) the amendment
would prejudice the opposing party, (2) the privilege to amend
has been abused, or (3) the amendment would be futile. Id. at
63. “Courts should be especially liberal when leave to
amend ‘is sought at or before a hearing on a motion for
summary judgment.’” Gate Lands Co. v. Old Ponte Vedra
Beach Condo., 715 So. 2d 1132, 1135 (Fla. 5 1998)
(quoting Bill Williams Air Conditioning & Heating, Inc. v.
Haymarket Co op Bank, 592 So. 2d 302, 305 (Fla. 1st DCA
1991)).

65 So. 3d 1190, 1193 (Fla. 2d DCA 2011) (emphasis added.)

The burden is on the party opposing amendment to establish one of the three

exceptions to amendment of pleadings. Id. Hence, in Laurencio, the Second District

reversed the trial court’s order denying leave to file an amended answer and affirmative
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COLE, SCOTT & KISSANE, P.A.
5220 SUMMERLIN COMMONS BLVD. SUITE 201A FORT MYERS, FL 33907 - (239) 690 7900 (239) 690 7968 FAX
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defenses where the plaintiff failed to show that one of the aforementioned exceptions

applied:

Here, the record does not show that Deutsche Bank
established any of the three exceptions to amendment of
pleadings. There is no basis for concluding that Laurencio
abused the privilege to amend or that Deutsche Bank would
be prejudiced by the amendment which alleges, inter alia, the
bank’s failure to comply with its own documents. And the
amendment clearly would not be futile considering the
unrefuted allegations that Deutsche Bank failed to comply
with conditions precedent to suit. See Wayne Creasy Agency,
Inc. v. Maillard, 604 So. 2d 1235, 1236 (Fla. 3d DCA 1992)
(“A denial of leave to amend a pleading is an abuse of
discretion where the proffered amendment indicates that a
plaintiff can state a cause of action. The same holds true
where a defendant demonstrates he could prevail with the
assertion of a properly available defense.” (Citation Omitted)).
Therefore, the trial court should have granted Laurencio leave
to file an amended answer and affirmative defenses.

Id.

As in Laurencio, there is no basis for denying Defendant leave to amend its

affirmative defenses to plead the new defenses afforded under Florida Statutes

768.81, 768.0427 – as revised. In further support thereof, Defendant notes that the

changes contemplated by these sections are procedural in nature, and thus, apply

retroactively.

Per the court in Pembroke Lakes Mall Ltd. v. McGruder, procedural changes in the

law should be applied to pending cases:

Even in the absence of legislative indication that a statute
should apply retroactively, procedural and remedial statues
“should be applied to pending cases in order to fully
effectuate the legislation’s intended purpose.” Arrow Air,
Inc. v. Walsh, 645 So. 2d 422, 423 (Fla. 1994) (citation

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COLE, SCOTT & KISSANE, P.A.
5220 SUMMERLIN COMMONS BLVD. SUITE 201A FORT MYERS, FL 33907 - (239) 690 7900 (239) 690 7968 FAX
Case No. 22001067CA

omitted). The general rule against retroactive application of
statutes does not apply to procedural or remedial changes.
See Smiley, 966 So. 2d at 334 (citing City of Lakeland v.
Catinella, 129 So. 2d 133, 136 (Fla. 1961)); State Farm Mut.
Auto. Ins. Co. v. Laforet, 658 So. 2d 55, 61 (Fla. 1995) (“The
general rule is that a substantive statute will not operate
retrospectively absent clear legislative intent to the contrary,
but that a procedural or remedial stature is to operate
retrospectively. (Citations Omitted).

....

[S]ubstantive law prescribes duties and rights and procedural
law concerns the means and methods to apply and enforce
those duties and rights.” Alamo Rent-A-Car, Inc. v. Mancusi
632 So.2d 1352, 1358 (Fla. 1994) (Citation Omitted).

137 So. 3d 418 (Fla. 4 DCA 2014) (emphasis added); see also Kenz v. Miami Dade

County & Unicco Serv. Co., 116 So. 3d 461 (Fla. 3d DCA 2013) (stating that “[s]ubstantive

law prescribes duties and rights, whereas procedural law concerns the means and

methods to enforce those duties and rights.”)

With respect to the shift to a modified comparative fault scheme under § 768.81(6),

Fla. Stat., this change is procedural under the Florida Supreme Court case of Hoffman v.

Jones, 280 So. 2d 431 (Fla. 1973). In Hoffman, the court held that the change from a

contributory scheme to a pure comparative fault system was procedural in nature.

With respect to the creation of evidentiary guidelines under § 768.0427, Fla. Stat.,

this change is procedural in nature because it does not prescribe duties and rights. For

instance, it does not cap or otherwise abrogate a claimant’s right to recover medical

expenses. Rather, it merely establishes a method for establishing medical expenses.

Hence, it qualifies as a means to enforce an existing right.

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COLE, SCOTT & KISSANE, P.A.
5220 SUMMERLIN COMMONS BLVD. SUITE 201A FORT MYERS, FL 33907 - (239) 690 7900 (239) 690 7968 FAX
Case No. 22001067CA

Based on the foregoing, Defendant should be afforded leave to amend its

affirmative defenses, and failure to do so would constitute an abuse of discretion.

The new affirmative defenses are contained in Paragraphs of the Affirmative

Defenses section of the First Amended Answer and Affirmative Defenses. See Exhibit

“B.”

CONCLUSION

The shift to a modified comparative fault system and the creation of evidentiary

guidelines for establishing medical expenses in personal injury or wrongful death actions

constitute procedural changes. Therefore, Defendant is entitled to raise the revised

Florida Statutes §§ 768.81, 768.0427 as affirmative defenses. Failure to afford Defendant

the requested leave would frustrate the Florida Legislature’s intended purpose. It would

also constitute reversible error because none of the exceptions to the rule in favor of

amendment of pleadings apply.

WHEREFORE, Defendant, OAK FORREST CONDOMINIUM ASSOCIATION,

INC., respectfully requests that this Honorable Court grant its Motion to Amend its

Affirmative Defenses, and for all other relief deemed just and proper.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 28 day of July 2023, a true and correct copy of
the foregoing was filed with the Clerk of Charlotte County by using the Florida Courts e
Filing Portal, which will send an automatic e mail message to the following parties
registered with the e Filing Portal system: Christopher J. Smith, Esq., Goldstein, Buckley,
Cechman, Rice & Purtz, P.A., cjs@gbclaw.com;cjsservice@gbclaw.com, 1515 Broadway
Street, PO Box 2366, Fort Myers, FL 33902 2366, (239) 334 1146/(239) 334 3039 (F),
Attorney for Plaintiff, Jimmy Lewis.

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COLE, SCOTT & KISSANE, P.A.
5220 SUMMERLIN COMMONS BLVD. SUITE 201A FORT MYERS, FL 33907 - (239) 690 7900 (239) 690 7968 FAX
Case No. 22001067CA

COLE, SCOTT & KISSANE, P.A.
Counsel for Defendant OAK FORREST CONDOMINIUM
ASSOCIATION, INC.
5220 Summerlin Commons Boulevard, Suite 201A
Fort Myers, Florida 33907
Telephone (239) 799 7003
Facsimile (239) 690 7968
Primary e mail: shawn.gillispie@csklegal.com
Secondary e mail: christina.rivieccio@csklegal.com

By: /s/ David E. Josey
DAVID E. JOSEY
Florida Bar No.: 1039245
SHAWN C. GILLISPIE
lorida Bar No. 1037782

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COLE, SCOTT & KISSANE, P.A.
5220 SUMMERLIN COMMONS BLVD. SUITE 201A FORT MYERS, FL 33907 - (239) 690 7900 (239) 690 7968 FAX
F L O R I D A H O U S E O F R E P R E S E N T A T I V E S

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1
2 An act relating to civil remedies; amending s. 57.104,
3 F.S.; creating a rebuttable presumption that a
4 lodestar fee is a sufficient and reasonable attorney
5 fee in most civil actions; providing an exception;
6 creating s. 86.121, F.S.; authorizing a court to award
7 attorney fees in certain declaratory actions;
8 prohibiting the transfer, assignment, or acquisition
9 of the right to such attorney fees except by specif ied
persons; providing applicability; amending s. 95.11,
F.S.; reducing the statute of limitations for
negligence actions; providing applicability of certain
provisions to actions involving servicemembers;
amending s. 624.155, F.S.; providing standards for bad
faith actions; providing for the distribution of
proceeds when two or more third-party claims arising
out of a single occurrence exceed policy limits;
creating s. 624.1552, F.S.; providing for
applicability of specified offer of judgement
provisions to civil actions involving insurance
contracts; creating s. 768.0427, F.S.; providing
definitions; providing standards for the admissibility
of evidence to prove the cost of damages for medical
expenses in certain civil actions; requiring certain
disclosures with respect to claims for medical

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expenses for treatment rendered under letters of
protection; specifying the damages that may be
recovered by a claimant for the reasonable and
necessary cost of medical care; creating s. 768.0701,
F.S.; requiring the trier of fact to consider the
fault of certain persons who contribute to an injury;
creating s. 768.0706, F.S.; providing definitions;
providing that the owner or principal operator of a
multifamily residential property which substantially
implements specified security measures on that
property has a presumption against liability for
negligence in connection with certain criminal acts
that occur on the premises; requiring the Florida
Crime Prevention Training Institute of the Department
of Legal Affairs to develop a proposed curriculum or
best practices for owners or principal operators;
providing construction; amending s. 768.81, F.S.;
providing that a party in a negligence action who is
at fault by a specified amount may not recover damages
under a comparative negligence action; providing
applicability; repealing ss. 626.9373 and 627.428,
F.S., relating to attorney fees awarded against
surplus lines insurers and insurers, respectively;
amending s. 627.756, F.S.; providing for the award of
costs and attorney fees in certain actions; amending

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ss. 475.01, 475.611, 517.191, 624.123, 624.488,
627.062, 627.401, 627.441, 627.727, 627.736, and
628.6016, F.S.; conforming provisions to changes made
by the act; repealing ss. 631.70 and 631.926, F.S.,
relating to attorney fees; amending s. 632.638, F.S.;
conforming provisions to changes made by the act;
providing a directive to the Division of Law Revision;
providing applicability and construction; providing an
effective date.

Be It Enacted by the Legislature of the State of Florida:
Section 1. Section 57.104, Florida Statutes, is amended to
read:
57.104 Computation of attorney attorneys' fees.
(1) In any action in which attorney attorneys' fees are to
be determined or awarded by the court, the court shall con sider,
among other things, time and labor of any legal assistants who
contributed nonclerical, meaningful legal support to the matter
involved and who are working under the supervision of an
attorney. For purposes of this section "legal assistant" means a
person, who under the supervision and direction of a licensed
attorney engages in legal research, and case development or
planning in relation to modifications or initial proceedings,
services, processes, or applications; or who prepares or
interprets legal documents or selects, compiles, and uses

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technical information from references such as digests,
encyclopedias, or practice manuals and analyzes and follows
procedural problems that involve independent decisions.
(2) In any action in which attorney fees are determined or
awarded by the court, there is a strong presumption that a
lodestar fee is sufficient and reasonable. This presumption may
be overcome only in a rare and exceptional circumstance with
evidence that competent counsel could not otherwise b e retained.
Section 2. Section 86.121, Florida Statutes, is created to
read:
86.121 Attorney fees; actions for declaratory relief to
determine insurance coverage after total coverage denial of
claim.
(1) In an action brought for declaratory relief in state
or federal court to determine insurance coverage after the
insurer has made a total coverage denial of a claim:
(a) Either party is entitled to the summary procedure
provided in s. 51.011, and the court shall advance the cause on
the calendar.
(b) The court shall award reasonable attorney fees to the
named insured, omnibus insured, or named beneficiary under a
policy issued by the insurer upon rendition of a declaratory
judgment in favor of the named insured, omnibus insured, or
named beneficiary. This right may not be transferred to,
assigned to, or acquired in any other manner by anyone other

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than a named or omnibus insured or a named beneficiary. A
defense offered by an insurer pursuant to a reservation of
rights does not constitute a coverage denial of a claim. Such
fees are limited to those incurred in the action brought under
this chapter for declaratory relief to determine coverage of
insurance issued under the Florida Insurance Code.
(2) This section does not apply to any action arisin
under a residential or commercial property insurance policy.
Section 3. Subsections (3), (4), and (10) of section
95.11, Florida Statutes, are amended, and subsection (12) is
added to that section, to read:
95.11 Limitations other than for the recovery of real
property. Actions other than for recovery of real property shall
be commenced as follows:
(3) WITHIN FOUR YEARS.
(a) An action founded on negligence.
(a)(b) An action relating to the determination of
paternity, with the time running from the date the child reaches
the age of majority.
(b)(c) An action founded on the design, planning, or
construction of an improvement to real property, with the time
running from the date of actual possession by the owner, the
date of the issuance of a certificate of occupancy, the date of
abandonment of construction if not completed, or the date of
completion of the contract or termination of the contract

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between the professional engineer, registered architect, or
licensed contractor and his or her employer, whichever date is
latest; except that, when the action involves a latent defect,
the time runs from the time the defect is discovered or should
have been discovered with the exercise of due diligence. In any
event, the action must be commenced within 10 years after the
date of actual possession by the owner, the date of the issuance
of a certificate of occupancy, the date of abandonment of
construction if not completed, or the date of completion of the
contract or termination of the contract between the professional
engineer, registered architect, or licensed contractor and his
or her employer, whichever date is latest. However,
counterclaims, cross-claims, and third-party claims that arise
out of the conduct, transaction, or occurrence set out or
attempted to be set out in a pleading may be commenced up to 1
year after the pleading to which such claims relate is served,
even if such claims would otherwise be time barred. With respect
to actions founded on the design, planning, or construction of
an improvement to real property, if such construction is
performed pursuant to a duly issued building permit and if a
local enforcement agency, state enforcement agency, or special
inspector, as those terms are defined in s. 553.71, has issued a
final certificate of occupancy or certificate of completion,
then as to the construction which is within the scope of such
building permit and certificate, the correction of defects to

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completed work or repair of completed work, whether performed
under warranty or otherwise, does not extend the period of time
within which an action must be commenced. Completion of the
contract means the later of the date of final performance of all
the contracted services or the date that final payment for such
services becomes due without regard to the date final payment is
made.
(c)(d) An action to recover public money or property held
by a public officer or employee, or former public officer or
employee, and obtained during, or as a result of, his or her
public office or employment.
(d)(e) An action for injury to a person founded on the
design, manufacture, distribution, or sale of personal property
that is not permanently incorporated in an improvement to real
property, including fixtures.
(e)(f) An action founded on a statutory liability.
(f)(g) An action for trespass on real property.
(g)(h) An action for taking, detaining, or injuring
personal property.
(h)(i) An action to recover specific personal property.
(i)(j) A legal or equitable action founded on fraud.
(j)(k) A legal or equitable action on a contract,
obligation, or liability not founded on a written instrument,
including an action for the sale and delivery of goods, wares,
and merchandise, and on store accounts.

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(k)(l) An action to rescind a contract.
(l)(m) An action for money paid to any governmental
authority by mistake or inadvertence.
(m)(n) An action for a statutory penalty or forfeiture.
(n)(o) An action for assault, battery, false arrest,
malicious prosecution, malicious interference, false
imprisonment, or any other intentional tort, except as provided
in subsections (4), (5), and (7).
(o)(p) Any action not specifically provided for in these
statutes.
(p)(q) An action alleging a violation, other than a
willful violation, of s. 448.110.
(4) WITHIN TWO YEARS.
(a) An action founded on negligence.
(b)(a) An action for professional malpractice, other than
medical malpractice, whether founded on contract or tort;
provided that the period of limitations shall run from the time
the cause of action is discovered or should have been discovered
with the exercise of due diligence. However, the limitation of
actions herein for professional malpractice shall be limited to
persons in privity with the professional.
(c)(b) An action for medical malpractice shall be
commenced within 2 years from the time the incident giving rise
to the action occurred or within 2 years from the time the
incident is discovered, or should have been discovered with t he

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exercise of due diligence; however, in no event shall the action
be commenced later than 4 years from the date of the incident or
occurrence out of which the cause of action accrued, except that
this 4-year period shall not bar an action brought on beha lf of
a minor on or before the child's eighth birthday. An "action for
medical malpractice" is defined as a claim in tort or in
contract for damages because of the death, injury, or monetary
loss to any person arising out of any medical, dental, or
surgical diagnosis, treatment, or care by any provider of health
care. The limitation of actions within this subsection shall be
limited to the health care provider and persons in privity with
the provider of health care. In those actions covered by this
paragraph in which it can be shown that fraud, concealment, or
intentional misrepresentation of fact prevented the discovery of
the injury the period of limitations is extended forward 2 years
from the time that the injury is discovered or should have been
discovered with the exercise of due diligence, but in no event
to exceed 7 years from the date the incident giving rise to the
injury occurred, except that this 7-year period shall not bar an
action brought on behalf of a minor on or before the child's
eighth birthday. This paragraph shall not apply to actions for
which ss. 766.301-766.316 provide the exclusive remedy.
(d)(c) An action to recover wages or overtime or damages
or penalties concerning payment of wages and overtime.
(e)(d) An action for wrongful death.

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(f)(e) An action founded upon a violation of any provision
of chapter 517, with the period running from the time the facts
giving rise to the cause of action were discovered or should
have been discovered with the exercise of due diligence, but not
more than 5 years from the date such violation occurred.
(g)(f) An action for personal injury caused by contact
with or exposure to phenoxy herbicides while serving either as a
civilian or as a member of the Armed Forces of the United States
during the period January 1, 1962, through May 7, 1975; the
period of limitations shall run from the time the cause of
action is discovered or should have been discovered with the
exercise of due diligence.
(h)(g) An action for libel or slander.
(10) FOR INTENTIONAL TORTS RESULTING IN DEATH FROM ACTS
DESCRIBED IN S. 782.04 OR S. 782.07. Notwithstanding paragraph
(4)(e) (4)(d), an action for wrongful death seeking damages
authorized under s. 768.21 brought against a natural person for
an intentional tort resulting in death from acts described in s.
782.04 or s. 782.07 may be commenced at any time. This
subsection shall not be construed to require an arrest, the
filing of formal criminal charges, or a conviction for a
violation of s. 782.04 or s. 782.07 as a condition for filing a
civil action.
(12) FOR ACTIONS INVOLVING SERVICEMEMBERS. Any action
involving a servicemember as defined in s. 250.01, in which the

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servicemember is a party, is subject to s. 250.5201 and part IV
of chapter 250, which includes the Servicemembers Civil Relief
Act, 50 U.S.C. ss. 501 et seq., providing for protections to
members of the United States Armed Forces, the United States
Reserve Forces, or the National Guard during terms of federal or
state active duty which materially affect the servicemember's
ability to appear.
Section 4. Section 624.155, Florida Statutes, is amended
to read:
624.155 Civil remedy.
(1) Any person may bring a civil action against an insurer
when such person is damaged:
(a) By a violation of any of the following provisions by
the insurer:
1. Section 626.9541(1)(i), (o), or (x);
2. Section 626.9551;
3. Section 626.9705;
4. Section 626.9706;
5. Section 626.9707; or
6. Section 627.7283.
(b) By the commission of any of the following acts by the
insurer:
1. Not attempting in good faith to settle claims when,
under all the circumstances, it could and should have done so,
had it acted fairly and honestly toward its insured and with due

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regard for her or his interests;
2. Making claims payments to insureds or beneficiaries not
accompanied by a statement setting forth the coverage under
which payments are being made; or
3. Except as to liability coverages, failing to promptly
settle claims, when the obligation to settle a claim has become
reasonably clear, under one portion of the insurance policy
coverage in order to influence settlements under other portions
of the insurance policy coverage.

Notwithstanding the provisions of the above to the contrary, a
person pursuing a remedy under this section need not prove that
such act was committed or performed with such frequency as to
indicate a general business practice.
(2) Any party may bring a civil action against an
unauthorized insurer if such party is damaged by a violation of
s. 624.401 by the unauthorized insurer.
(3)(a) As a condition precedent to bringing an action
under this section, the department and the authorized insurer
must have been given 60 days' written notice of the violation.
Notice to the authorized insurer must be provided by the
department to the e-mail address designated by the insurer under
s. 624.422.
(b) The notice shall be on a form provided by the
department and shall state with specificity the following

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information, and such other information as the department may
require:
1. The statutory provision, including the specific
language of the statute, which the authorized insurer allegedly
violated.
2. The facts and circumstances giving rise to the
violation.
3. The name of any individual involved in the violation.
4. Reference to specific policy language that is relevant
to the violation, if any. If the person bringing the civil
action is a third party claimant, she or he shall not be
required to reference the specific policy language if the
authorized insurer has not provided a copy of the policy to the
third party claimant pursuant to written request.
5. A statement that the notice is given in order to
perfect the right to pursue the civil remedy authorized by this
section.
(c) No action shall lie if, within 60 days after the
insurer receives notice from the department in accordance with
this subsection, the damages are paid or the circumstances
giving rise to the violation are corrected.
(d) The authorized insurer that is the recipient of a
notice filed pursuant to this section shall report to the
department on the disposition of the alleged violation.
(e) The applicable statute of limitations for an action

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under this section shall be tolled for a period of:
1. Sixty days after the insurer receives from the
department the notice required by this subsection.
2. Sixty days after the date appraisal is invoked pursuant
to paragraph (f).
(f) A notice required under this subsection may not be
filed within 60 days after appraisal is invoked by any party in
a residential property insurance claim.
(4)(a) An action for bad faith involving a liability
insurance claim, including any such action brought under the
common law, shall not lie if the insurer tenders the lesser of
policy limits or the amount demanded by the claimant within
90 days after receiving actual notice of a claim which is
accompanied by sufficient evidence to support the amount of the
claim.
(b) If an insurer does not tender the lesser of the policy
limits or the amount demanded by the claimant within the 90-day
period provided in paragraph (a), the existence of the 90-day
period and that no bad faith action could lie had the insurer
tendered the lesser of policy limits or the amount demanded by
the claimant pursuant to paragraph (a) is inadmissible in any
action seeking to establish bad faith on the part of the
insurer.
(c) If the insurer fails to tender pursuant to paragraph
(a) within the 90-day period, any applicable statute of

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limitations is extended for an additional 90 days.
(5) In any bad faith action, whether such action is
brought under this section or is based on the common-law remedy
for bad faith:
(a) Mere negligence alone is insufficient to constitute
bad faith.
(b)1. The insured, claimant, and representative of the
insured or claimant have a duty to act in good faith in
furnishing information regarding the claim, in making demands of
the insurer, in setting deadlines, and in attempting to settle
the claim. This duty does not create a separate cause of action,
but may only be considered pursuant to subparagraph 2.
2. In any action for bad faith against an insurer, the
trier of fact may consider whether the insured, claimant, or
representative of the insured or claimant did not act in good
faith pursuant to this paragraph, in which case the trier of
fact may reasonably reduce the amount of damages awarded against
the insurer.
(6) If two or more third-party claimants have competing
claims arising out of a single occurrence, which in total may
exceed the available policy limits of one or more of the insured
parties who may be liable to the third-party claimants, an
insurer is not liable beyond the available policy limits for
failure to pay all or any portion of the available policy li mits
to one or more of the third-party claimants if, within 90 days

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after receiving notice of the competing claims in excess of the
available policy limits, the insurer complies with either
paragraph (a) or paragraph (b).
(a) The insurer files an interpleader action under the
Florida Rules of Civil Procedure. If the claims of the competing
third-party claimants are found to be in excess of the policy
limits, the third-party claimants are entitled to a prorated
share of the policy limits as determined by the trier of fact.
An insurer's interpleader action does not alter or amend the
insurer's obligation to defend its insured.
(b) Pursuant to binding arbitration that has been agreed
to by the insurer and the third-party claimants, the insurer
makes the entire amount of the policy limits available for
payment to the competing third-party claimants before a
qualified arbitrator agreed to by the insurer and such third -
party claimants at the expense of the insurer. The third -party
claimants are entitled to a prorated share of the policy limits
as determined by the arbitrator, who must consider the
comparative fault, if any, of each third-party claimant, and the
total likely outcome at trial based upon the total of the
economic and noneconomic damages submitted to the arbitrator for
consideration. A third-party claimant whose claim is resolved by
the arbitrator must execute and deliver a general release to the
insured party whose claim is resolved by the proceeding.
(7)(4) Upon adverse adjudication at trial or upon appeal,

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Case Info

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GENTILE, GEOFFREY H Track Judge’s New Case

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Document Filed Date

November 15, 2053

Case Filing Date

August 02, 2022

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Document for LEWIS, JIMMY vs. OAK FORREST CONDOMINIUM ASSOCIATION, INC.

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