Abatement of Premature Florida Bad Faith Claim

J.P. Gonzalez-Sirgo
Founder of J.P. Gonzalez-Sirgo, P.A.

In Florida, there are certain requirements that must be met before a policyholder can pursue a statutory bad faith claim under Florida Statutes section 624.155.  The statute includes a notice provision, for example, and homeowner policies also include conditions that must be fulfilled that include providing a sworn proof of loss.  Insurance companies often attempt to exploit the mistake of policyholders by seeking dismissal of lawsuits filed before the insured’s bad faith claim is ripe. 

“Ripeness” refers to the readiness of a case for litigation.  If the case depends on future events that might not occur, the case is not yet ripe.  A lawsuit cannot proceed when it is brought before the case is ripe, such that all events that are contingent for the lawsuit to proceed have been resolved.

My office represents clients whose insurance companies fail to uphold their duty of good faith and fair dealing toward policyholders.  We frequently file lawsuits seeking not only the full value of our client’s loss, but also an attorney fee award and other appropriate damages when our client is forced to resort to litigation to compel an insurer to fulfill its contractual obligations.  The ripeness issue often arises when a bad faith claim is filed prior to a determination that the insurance company is liable for the loss.

Although filing a lawsuit prematurely can result in an insurance carrier getting the case dismissed, Florida courts are increasingly taken a less severe approach.  A recent Federal Court interpreting Florida law in Gianassi v. State Farm Mut. Auto. Ins. Co. indicated “[b]oth parties recognize that a statutory bad faith claim that is filed prior to resolution of the underlying insurance claim is premature.  However, they disagree about what to do in the instant case.”  While the insurer requested that the judge dismiss the case, the policyholder requested that the court simply “abate” the case until the question of coverage was determined.  Abatement means that the lawsuit is simply suspended or placed on hold until the issues necessary for the matter to be considered ripe for the lawsuit to proceed have been resolved.

The Gianassi court went on to observe that Florida courts have not settled on a definitive approach to handling premature bad faith claims.  Some courts dismiss such cases while others use the abatement approach until the claim becomes ripe.  However, the court noted some definite justifications for abating the proceeding.  The court recognized that abatement offers the benefit of judicial efficiency when ruling on bad faith claims that have not become ripe.  Since the proceeding is simply suspended, the parties do not have to refile pleadings, and the court can avoid rehearing matters that were already decided prior to a dismissal because the claim was premature.

This case provides yet another example of the complex issues that can arise when policyholders are forced to resort to filing a lawsuit against their insurance company for breach of contract or insurance bad faith.  While a court may have the option of simply abating the proceeding if you have failed to comply with all pre-suit requirements, a dismissal is also a possibility.  If you are beyond the statute of limitations when the lawsuit is dismissed, generally you will be permanently barred from pursuing a lawsuit to obtain the benefits under your policy.

If you have questions about Miami-Dade bad faith insurance claims, you are welcome to contact my Florida insurance claims dispute law firm.  My law firm represents policyholders in claims disputes in Miami and throughout Florida.  The Law Firm of J.P. Gonzalez-Sirgo, P.A. offers free consultations and case evaluations.  No Recovery, No Lawyer Fees.  Call 305-461-1095 or Toll Free 1-866-71-CLAIM.

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